The Place of the Victim in the Criminal Justice System - Coursework Example

Introduction Victims of crimes may feel that they are not included in the criminal justice system. One of the reasons why they might feel this way is the concept of victimology. This philosophy is based on the notion that victims are somehow “asking for it.” Rape victims “ask for it” by wearing provocative clothing, or having loose morals. Domestic violence victims are “asking for it” by somehow verbally provoking the abuser. Etc. Barristers use the concept of victimology against the victims, to show that the perpetrator is not the only guilty party, and this has the effect of making the victims feel that they should not come forward. That said, other methods of justice, such as restorative justice and reparative justice, might make the victim feel included in the process, because these methods of justice have, at their core, the goal of making the victim feel more satisfied in the process. This essay will examine these concepts. Discussion Victimology is, at its essence, a study of the interplay between the criminal and the victim. In other words, victimology assumes that, somehow, the victim was “asking for” the crime. Von Hentig, in his book The Criminal and His Victim stated that the victim contributes to the crime, and that crime is “reciprocal” (Fattah, 2000, p. 22). Mendelsohn, along with Von Hentig, found that crime victims are somehow participatory in their crimes (Siegel & Senna, 2009, p. 15). Dunn (2010) states that the there are individuals who are predisposed to become victims, and he called this “victim precipitation.” Mendelsohn had the belief that victims were unconsciously desiring to be victimized, putting crime victims into categories. Newburn (2007) would state that Dunn, Von Hentig and Mendohlson are positivist victimologists, in that they focus not only on the offender but on the victim, and the victim’s role in the crime. Newburn (2007) states that, in addition to positivist victimologists, other kinds of victimologists are radical and critical. The radical victimologist is one who sees the offender as oppressed, and the radical victimologist, instead of seeing crime through the lens of individual victims, instead looks at society and structural factors in socially constructing the victims and the offenders. Newburn (2007) criticizes the radical victimologist for confining the analysis of victims and offenders by social class relationships, and ignoring the impact of gender, race and age. Critical victimology sees victimology in terms of historical influences and power, stating that power and historical and cultural contexts (such as patriarchy and social class) are the arbiters of victimology. These influences, according to Newburn (2007) shapes “both victimizing practices and our sensitivities towards them” (Newburn, 2007, p. 346). While victimology concentrates on ways to blame the victim, which would therefore make the victims feel less respected and would open the door to victim-blaming on the criminal justice stand, other types of justice principles are designed to make the victim feel more satisfied with the criminal justice process. Restorative justice is one of the means for this. Restorative justice is described by Wenzel et al. (2008) as a way for the victim to be restored by gathering the stakeholders in a crime together and create a collective resolution on how to deal with the effects of the offense and the offense’s impact on the future. For instance, Liebmann (2007) states that restorative justice might take the form of the victim and the perpetrator may discuss, face to face, the injustice. This meeting might take the form of a mediation, in which the victim and the offender meet in a safe environment; family conferences, in which the families, peers and supporters of both the victim and the perpetrator are also involved in the victim-perpetrator meeting; and circle-sentencing, which involves other members of the community in this meeting as well (Wenzel et al., 2008). Wenzel et al. (2008) further state that the focus, in restorative justice, is not on punishment so much as it is on healing. The criminal has the chance to apologize to the victim, and the victim has a chance to show forgiveness and overcome his or her resentment. Wenzel et al. (2008) further states that victims, in restorative justice, tend to feel more satisfied than do victims who are a part of the court process, mainly because they feel that they are included in the criminal justice process. Umbreit (2001) states that the values of restorative justice are conducive to making the victims of crime feel more whole – for instance, active support for victims is emphasized, along with the restoration of emotional and material victim losses. That, along with the concept that the victims would have a chance for dialogue with support persons and the offenders, provide a restoration for the victim, according to Umbreit (2001). Another concept to understand is that of reparation. According to McNeill (2009), reparation is seen when the criminal, instead of serving time in prison, serves his criminal sentence by working to repair the community and/or the victim. The criminal may do this by making financial payments, by doing volunteer work, or by doing rehabilitation work. Sometimes it is combination of all of the above. The criminal may work at changing him or herself, by doing through drug and alcohol programs, or by addressing other issues, such as financial, housing and attitudinal issues. The criminal also might work at change by addressing mental health problems (McNeill, 2009). Penal philosopher Anthony Duff (2001) sees reparations as a kind of constructive punishment, which gives offenders a chance to rehabilitate while they make reparations. An excellent example of reparations would be the criminal who, instead of serving prison time for animal cruelty, is sentenced to volunteer in an animal shelter, in the hopes that the individual would be sensitized to the suffering of animals. Another excellent example of reparations would be a drug court, which is a type of court where the low-level drug criminal does not serve prison time. Instead, the criminal goes through a process of rehabilitation, according to what the judge and prosecutor might believe that the criminal needs (drug counseling, mental health screening, etc.). Then, as long as the criminal completes the program, he or she may see the charges against him or her dismissed. While restorative justice has as its goal a kind of mediation between the criminal and the victim, and reparations has as its goal the criminal making a restitution to society and to the victim, and these presumably make the victim feel more satisfied, the criminal justice system often has the opposite effect on the victim. This is because the victim is often “revictimized” by cross-examination when they take the stand in the criminal trial. For instance, the prosecutor might ask the victim of domestic violence or rape personal questions which are designed to make the victim feel, and be perceived, that he or she was “asking for it” (Siegel & Senna, 2009, p. 15). Siegel & Senna (2009) state that this might take the form of rape victims being asked about their sex life, or a victim of domestic violence being asked about what they did to provoke the attack, and how come they haven’t left the offender? Siegel & Senna (2009) further state that this not only is this type of cross-examination detrimental to the victim, but it is also detrimental to society, as it has a chilling effect. A rape victim might see what happens to other rape victims to take the stand, and feel that it isn’t worth it to press charges. Same with domestic violence victims. What this would mean, in the end, is that the violent perpetrator does not pay for his crime, and is free to victimize somebody else, all because the victim is afraid to come forward, for fear of being revictimized. This would inevitably lead to the victim feeling that he or she is not a part of the criminal justice process, because, if the prosecutor is allowed to revictimize the victim, then the victim would be shut out of the process altogether if they refuse to take the stand for this reason. Other ways that victims feel left out of the process includes the fact that, often, the victims do not have a say in the sentencing. This often happens with plea bargains. For instance, Williams (2010) states that many convictions for rape are often convictions for lesser offenses, due to the ubiquitous plea bargain. This means that, instead of rapists being convicted of rape, they are convicted of sexual assault or sexual activity with a child under the age of 16. According to victims’ advocates, such as Ruth Hall, or the organization Women Against Rape, such convictions for lesser offenses means that the offender will be out sooner than if he had been convicted of rape, the sentence is lower than a rape conviction and the victim is not compensated (Williams, 2010). Whitehead (2009) reports that muggers, burglars and violent offenders were being charged with lower offences, in an effort to boost prosecutor conviction rates. Perhaps the fact that offenders plea bargain to lesser offenses, therefore do not realize the full extent of their crimes, is the reason for the high recidivism rates – according to Victim Support, reconvictions for adults were 40% in 2008(Victim Support). Moreover, according to an audit of the UK criminal justice system, conducted by the group Victim Support, many crime victims are not given the support that they need and request – three out of 10 victims who asked for and required emotional support did not even offered this kind of support. The audit also found that only about a third of the UK citizens believe that the criminal justice system meets the needs of victims. The audit also found that victims are left out of the court process, in that 46% of victims in the magistrate and the Crown Court were not asked to give evidence. The audit also found that 33% of victims were not offered a court visit before trial, even though the auditors stated that every victim should be offered this service. The audit also found that only 10% of offenders are required to make restitution to the victims. Victim personal statements are important, because these statements give the victim a voice, and gives the victim an opportunity to tell the judge or the magistrate how the crime has affected the victim. Yet the Victim Support audit found that only 44% of victims are offered a chance to make this statement (Victim Support, 2011). Townsend (2011) reports that only half of victims are being kept informed about their cases and events such as arrests, bail, charges, summons and remand, and that a full one-third of victims “hear nothing more from the authorities after reporting the crime” (Townsend, 2011). These statistics has prompted Javed Khan, who is the Chief Executive of Victim Support, to state that the criminal justice system is not meeting the needs of victims, and is leading to re-victimization (Justice Agencies Failing Victims Says Criminal Justice Audit). Townsend (2011) states that these statistics are causing victims to state that they would be less likely to report criminal incidents in the future. A report by Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) and Her Majesty’s Inspectorate of Constabulary (HMIC) echoes the failings of the criminal justice system, and specifically states that young people are even more marginalized. According to a joint report by the two agencies, young people are not given the opportunity to given evidence by written statements or by videolink, and they are told that they should not speak frankly to their counselors. The report also states that there are often presumptions made in behalf of the youthful victims, which leads to decisions which are inappropriate. Moreover, witness care units are consistently not assessing the needs of the vulnerable youthful victims face-to-face, doing this by post, despite guidelines instructing them otherwise (Criminal Justice Joint Inspection). While victims are often revictimized by the criminal justice system, there are guidelines in place to protect them, even if these guidelines are not always followed. For instance, Britain now has a Victim’s Charter, which guides the stakeholders in the justice system (judges, prosecutors, victim’s advocates, etc.) on how crime victims should be treated. The “Statement on the Treatment of Victims and Witnesses” (1993) and the “Court Users Guide” also act as guides to treating victims in the criminal justice system. “The Victim’s Charter,” updated in 1996, has implemented 27 different standards for barristers, and the barristers are to use these standards when cross-examining crime victims (Heap, 2008). Conclusion Because of the principles inherent in victimology, the victims of crimes often feel that they are revictimized through cross-examination practices. Barristers who are familiar with the work of early victimologists, such as Mendelssohn, and Von Hertig, may use these philosophies to show how the victim is complicit in her or his own crime. Rape victims may be asked about sexual practices, the number of sexual partners or what they were wearing. Domestic violence victims may be asked about what they said to the perpetrator, and explain why they stayed in the situation for so long. Etc. These are ways for the victim to feel disrespected, and reasons for the victims not to come forward. That said, this properly describes the advocacy system of criminal justice. Other systems seem to be more victim-friendly, even if they do not necessarily result in the incarceration of the defendant. One system is that of reparations, and that is where the perpetrator makes reparations to either the victim or society, either by giving money or by bettering him or herself. Another system involves restorative justice, which means that the criminal and the victim mediate and try to come to a sort of understanding. Both of these processes would make the victim feel included in the system. Because the victim might not feel included in the regular criminal justice system because of victimology and the possibility that the criminal might plea bargain, without the prosecutor consulting the victim, reparative and restorative justice programs do have distinct advantages over the standard criminal justice system. Sources Used Criminal Justice Joint Inspection (2012) Joint inspection report on the experience of young victims and witnesses in the criminal justice system. Available at: http://www.pc.rhul.ac.uk/sites/rheg/wp-content/uploads/2012/02/HMIC-CPS-Young-Witnesses-report-2012.pdf Duff. A. (2001) Punishment, Communication and Community. New York: Oxford University Press. Dunn, J. (2010) Judging Victims. New York: Lynne Rienner Publications. Fattah, E. (2000) Victimology: Past, present and future. Criminologie, vol. 33, no. 1,pp. 17-46. Heap, V. (2008) Criminal victimisation of the elderly: Have rates of crime against the elderly changed relative to overall crime rates? International Journal of Criminology. Available at: http://www.internetjournalofcriminology.com/Heap%20-%20Criminal%20Victimisation%20of%20the%20Elderly.pdf Liebmann, M. (2007) Restorative Justice: How It Works. London: Jessica Kingsley Publishers. Newburn, T. (2007) Criminology. Devon, UK: Willan Publishing. Townsend, M. (10 Sept. 2011) Crime Victims “Are Being Let Down by the Justice System.” The Observer. Umbreit, M. (2001) The Handbook of Victim Offender Mediation: An Essential Guide to Research and Practice. San Francisco: Jossey-Bass, Inc. Von Hentig, H. (1948) The Criminal and his Victim. New Haven: Yale U. Press. Williams, R. (19 March 2010) Fewer rape convictions because plea bargains prevail, report suggests. The Guardian. McNeill, F. (2009) Probation, rehabilitation and reparation. In: 2nd Annual Martin Tansey Memorial Lecgture, 2009-05-01 Dublin. Mendelsohn, B. (1963) The origin of the doctrine of victimology. Excerpta Criminologica 3.30. Wenzel, M. (2008) Retributive and restorative justice. Law and Human Behavior, vol. 32, pp. 375-389. Read More